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Chaney v. Riverside Health Care Center

CASE NO. 4270 CRB-1-00-7

COMPENSATION REVIEW BOARD

WORKERS’ COMPENSATION COMMISSION

DECEMBER 17, 2001

JUANITA CHANEY

CLAIMANT-APPELLEE

v.

RIVERSIDE HEALTH CARE CENTER

EMPLOYER

and

EBI COMPANIES

INSURER

RESPONDENTS-APPELLANTS

APPEARANCES:

The claimant was represented by Nicholas Francis, Esq., Law Offices of Nicholas Kocian, 182 Collins Street, Hartford, CT 06105.

The respondents were represented by Erik Bartlett, Esq., McGann, Bartlett & Brown, 281 Hartford Turnpike, Suite 401, Vernon, CT 06066.

This Petition for Review from the July 14, 2000 Finding and Award of the Commissioner acting for the First District was heard August 24, 2001 before a Compensation Review Board panel consisting of the Commission Chairman John A. Mastropietro and Commissioners George A. Waldron and Ernie R. Walker.

OPINION

JOHN A. MASTROPIETRO, CHAIRMAN. The respondents have petitioned for review from the July 14, 2000 Finding and Award of the Commissioner acting for the First District. In that decision, the trial commissioner concluded that the employer’s act of furnishing a back brace to the claimant constituted the furnishing of medical care as provided in § 31-294c(c), and thus concluded that the claimant’s claim was not time barred. In support of their appeal, the respondents argue that the trier erred by ruling that the furnishing of a back brace satisfied the “medical care” exception of § 31-294c(c). We find no error.

The trier found the following relevant facts. The claimant worked for the respondent employer in the laundry and housekeeping department, and her duties included repetitive lifting, bending, carrying and pushing. On September 1, 1996, while in the course of her job duties, the claimant felt a snap in her back and reported the incident to her supervisor, Orlando Estrada. Mr. Estrada gave the claimant a back brace and told her to wear it while at work, and monitored the claimant to make sure that she complied. The trial commissioner specifically referred to Claimant’s Exhibit A which is titled “Supervisor’s Accident Investigation Report.” In that report under subsection IV titled “Remedy” it states that the claimant has been supplied with a back brace, and under subsection V titled “Follow Up” it states that the supervisor “will monitor her to ensure that she wears her back brace.” Findings, ¶ 7.

The trial commissioner found that Karen Chadderton, an upper management personnel and also a registered nurse, signed the report (Claimant’s Exh. A) as a supervisor. The trial commissioner concluded that the employer’s furnishing of the back brace constituted medical care under § 31-294d, and that it satisfied the medical care exception of § 31-294c(c).

Section 31-294c(c) allows a claimant to proceed “if within the applicable period [he] has been furnished, for the injury with respect to which compensation is claimed, with medical or surgical care as provided in section 31-294d.”1 The existence of the “medical care” exception to § 31-294c is “based upon the fact that if the employer furnishes medical treatment he must know that an injury has been suffered which at least may be the basis of [a workers’ compensation] claim.” Gesmundo v. Bush, 133 Conn. 607, 612 (1947) (emphasis added). Section 31-294c specifies that such medical care must have been provided “for the injury with respect to which compensation is claimed.”

In support of their appeal, the respondents contend that the medical care exception was not met as the back brace was not provided by a physician. The respondents cite Carlino v. Danbury Hospital, 1 Conn. App. 142 (1984), in which the court explained that “the statute is satisfied if the following two elements are established: (1) the employer knows of the injury; and (2) the employer provides a competent physician, who may be a full-time staff physician, ‘to furnish immediate initial treatment.’” Carlino, supra, 148, citing Kulis v. Moll, 172 Conn. 104, 108 (1976). We disagree with the respondents’ reliance on Carlino, supra. In that case, the claimant went to the employer’s physician complaining of a back injury and the physician, without examining the claimant, advised her to see a psychiatrist. The court found that this “provided the [employer] with the requisite knowledge of the injury.” Id., 148.

The court in Carlino, supra, examined the holding in Kulis, supra, where the court held that the defendant employer’s act of driving the claimant to the hospital did not constitute the furnishing of medical care. The court explained: “The [Kulis] case turned on the fact, however, that there was no evidence to indicate whether the plaintiff, whom the defendant found on the ground, had suffered a sudden illness, an accident or an external assault before the defendant drove him to the hospital; thus, the defendant had no indication of his potential exposure until much later when his opportunity for investigation had passed.” Carlino, supra, 148-49.

The conclusion that care from a physician is not necessary to satisfy the medical care exception is further supported by Infante v. Mansfield Construction Company, 47 Conn. App. 530 (1998) in which the court held that the respondent insurer’s “payment of medical bills for an extended period, under the particular facts and circumstances of this case, constitutes the furnishing of medical treatment.” Id., 536. Additionally, in Pernacchio v. New Haven, 63 Conn. App. 570 (2001), the court found that it could “hardly be disputed that the tests performed by the hospital were medical services” and thus did not decide whether a ride in an ambulance attended by paramedics qualified as a medical service so as to satisfy the medical care exception of § 31-294c(c). Id., 577. In Pernacchio, the court found that the respondent employer had notice of the claimant’s claimed injury due to the fact that the ambulance was staffed with the respondent employer’s paramedics and through the investigative report of the respondent’s workers’ compensation division. Id.

Here, the trial commissioner made specific findings which indicate that the employer was immediately advised of the claimant’s injury on September 1, 1996, and that a report was prepared fully describing how the injury took place and the remedies provided by the employer. The findings of fact support a conclusion that the employer was aware of a potential workers’ compensation claim within the meaning of Gesmundo, supra.

The trial commissioner found that the employer’s furnishing the claimant with a back brace due to the injury she sustained constituted the furnishing of medical treatment, particularly as it was “given out under the auspices of supervisor Karen Chadderton, a Registered Nurse.” Findings, ¶ D. We conclude that the trial commissioner had discretion to decide whether the provision of a back brace satisfied the medical care exception of § 31-294c(c), under the particular circumstances of this case, including the fact that it was given to the claimant under the auspices of a supervisor and registered nurse, the fact that the claimant’s use of the back brace was monitored, and the fact that the employer had notice of the claimant’s injury.

The trial commissioner’s decision is affirmed.

Commissioners George A. Waldron and Ernie R. Walker concur.

1 Section 31-294d provides, in relevant part: “(a) The employer, as soon as he has knowledge of an injury, shall provide a competent physician or surgeon to attend the injured employee and, in addition shall furnish any medical and surgical aid or hospital and nursing service, including medical rehabilitation services, as the physician or surgeon deems reasonable or necessary.

(b) The employee shall select the physician or surgeon from an approved list of physicians and surgeons prepared by the chairman of the Workers’ Compensation Commission. . . . If the employer has a full-time staff physician or if a physician is available on call, the initial treatment required immediately following the injury may be rendered by that physician, but the employee may thereafter select his own physician as provided by this chapter . . . .” BACK TO TEXT

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State of Connecticut Workers' Compensation Commission, John A. Mastropietro, Chairman
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